Common use of Section 338(h)(10) Election Clause in Contracts

Section 338(h)(10) Election. (a) Buyer and Shareholders agree, with respect to the acquisition of the Shares pursuant to this Agreement, to prepare and file the election provided by Section 338(h)(10) of the Code and any comparable election under state, county, or local law (collectively and separately the “Election”). Each party shall provide to the other all information necessary to permit the making of the Election. Buyer and Shareholders shall, no later than 30 days prior to the last date for filing a timely Election, execute and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Election. (b) In connection with the Election and no later than 30 days prior to the last date for filing a timely Election, Buyer shall in good faith (i) determine the amount of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10), and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance with the Code and the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assets. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of the Code.

Section 338(h)(10) Election. (a) Buyer and Shareholders agree, The applicable Sellers will join with respect to the acquisition of the Shares pursuant to this Agreement, to prepare and file the election provided by Purchaser in making a Section 338(h)(10) of the Code and any comparable election under state, county, or local law (collectively and separately the “Election”). Each party shall provide Election to the extent requested by Purchaser within the timeframe permitted by Law. Purchaser and such Sellers will comply fully with all filing and other all information requirements necessary to permit effectuate any such Section 338(h)(10) Election on a timely basis and agree to cooperate in good faith with each other in the preparation and timely filing of any Tax Returns required to be filed in connection with the making of the Election. Buyer and Shareholders shall, no later than 30 days prior to the last date for filing a timely any such Section 338(h)(10) Election, execute including the exchange of information and file Internal Revenue Service the joint preparation and filing of IRS Form 8023 and IRS Form 8883 (and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Electionsupplements thereto). (b) In connection with At the Election and no Closing, the applicable Sellers shall deliver an executed IRS Form 8023. No later than 30 one hundred twenty (120) days prior following the Closing, Purchaser shall deliver to the last date for filing a timely Election, Buyer shall in good faith such Sellers (i) determine Purchaser’s determination of the amount and allocation of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of aggregate deemed sales price in accordance with applicable Treasury Regulations adopted under Section 338(h)(10)and consistent with the Tax Allocation, and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance a draft IRS Form 8883 (or successor form) with the Code any attachments, and the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders and Buyer will not take any position inconsistent with the Election, the Allocation, comparable forms required by provisions of state or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assetslocal law. (c) Upon making Purchaser and the ElectionSellers agree that (i) the purchase and sale of the Shares will result in a termination of certain of the Companies’ “S” election, Shareholders as described in Treasury Regulation Section 1.338(h)(10)-1(d)(3)(i) and that the termination year of the Companies that are corporations shall pay to Buyer be divided into two short taxable years, an “S Short Year” and a “C Short Year” (as hereinafter defined), (ii) the S Short Year shall hold be that portion of the Buyer harmless from, the amount, if any, of tax liability imposed Company’s termination year ending on the Company attributable Closing Date and the C Short Year of the Companies shall be that portion of the Companies’ termination year beginning on the day immediately following the Closing Date and ending on the last day of the taxable year, (iii) the Companies shall allocate items of income, gain, loss, deduction and credit for its termination year between the S Short Year and the C Short Year in accordance with the principles of Treasury Regulations Sections 1.338(h)(10)-1(d)(3) and 1.1362-3, and (iv) to the making of the Election or attributable to an election under statemaximum extent permitted by applicable Law, local, or foreign law similar all Transaction Tax Deductions shall be allocated to the election available under Section 338(h)(10) of the CodeS Short Year.

Section 338(h)(10) Election. (a) If requested by Buyer within 90 days following the Closing Date, the Company and Shareholders agree, each Shareholder shall join with Buyer in making a timely Election with respect to the acquisition of Stock Purchase and the Shares pursuant Company and Shareholder shall cooperate with Buyer to this Agreement, to prepare take all actions necessary and file the election provided by Section 338(h)(10) of the Code appropriate (including executing and any comparable election under state, county, or local law (collectively and separately the “Election”). Each party shall provide to the other all information necessary to permit the making of the Election. Buyer and Shareholders shall, no later than 30 days prior to the last date for filing a timely Election, execute and file Internal Revenue Service Form 8023 and all such other forms, returns, elections, schedules, schedules and other documents as may be required required) to effect and preserve a timely ElectionElection in accordance with Section 338(h)(10) of the Code or any successor provisions (and all corresponding state and local tax laws). As a condition to Closing, the Shareholder will furnish to Buyer a completed Form 8023 executed by each Shareholder (and their spouses, if they hold their Company Common Stock as community property), which Form 8023 shall be filed only if Buyer determines that the Election shall be made as provided in the preceding sentence. (b) In connection with the Election and no later than 30 days prior to the last date for filing a timely Election, if any, Buyer shall in good faith provide to the Company a schedule, which shall be subject to approval by the Representative (inot to be unreasonably delayed or withheld) determine and which sets forth the amount allocation (the “Acquisition Allocation Schedule”) of the “adjusted grossed-up basis” deemed asset purchase consideration among the assets of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10), and (ii) allocate the adjusted grossed-up basis among the Company’s assets Company for Tax purposes. Such allocation shall be made in accordance with the Code methodologies and the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders principles set forth in Schedule 12.1, and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assets. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of the CodeCode and any applicable Treasury Regulations. The Representative shall promptly review the Acquisition Allocation Schedule and provide any proposed revisions to Buyer. The Representative and Buyer agree to cooperate in good faith to resolve any issues related to the Acquisition Allocation Schedule. In the event the parties do not reach agreement on any disputed issues related to the Acquisition Allocation Schedule, the Representative and Buyer shall submit such issues to the Independent Accounting Firm, who shall uphold Buyers proposed allocation without modification unless such allocation is determined to be unreasonable or inconsistent with the methodologies and principles set forth in Schedule 12.1, and whose decision shall be binding on the Shareholder, the Company, and Buyer. The costs of such Independent Accounting Firm shall be shared equally by the Shareholder on the one hand and Buyer on the other unless the Asset Allocation Schedule is determined to be unreasonable or inconsistent with the methodologies and principles set forth in Schedule 12.1, in which case Buyer shall bear the full costs of such Independent Accounting Firm. The parties hereto shall take no position inconsistent with the Acquisition Allocation Schedule as finally determined.

Section 338(h)(10) Election. The Sellers shall join with the Buyer in making a timely election under IRC §338(h)(10) (aand any corresponding election under state and local Legal Requirements) Buyer and Shareholders agree, with respect to the acquisition purchase and sale of the Shares pursuant to this Agreementhereunder (collectively, to prepare and file the election provided by a “Section 338(h)(10) of the Code and any comparable election under state, county, or local law (collectively and separately the “Election”). Each party The Buyer and the Sellers shall provide report the Contemplated Transactions in a manner consistent with the Section 338(h)(10) Election. Neither the Buyer nor any Seller shall take any action that is inconsistent with the Section 338(h)(10) Election or its validity under the IRC and the applicable Treasury Regulations. Within ninety (90) days after the Closing Date, the Buyer shall deliver to the other all information necessary to permit Sellers’ Representative an allocation schedule (the making “Allocation Schedule”) setting forth the Buyer’s good faith calculation of the Election. Buyer and Shareholders shallaggregate deemed sales price, no later than 30 days prior to the last date for filing a timely Election, execute and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Election. (b) In connection with the Election and no later than 30 days prior to the last date for filing a timely Election, Buyer shall in good faith (i) determine the amount of the “adjusted grossed-up basis” , and the allocation of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10), aggregate deemed sales price and (ii) allocate the adjusted grossed-up basis among the Company’s assets of the Company in accordance with the Code principles of Treasury Regulations §1.338-6, taking into due consideration the suggested allocations set forth in the allocation schedule in Section 7.2 of the Disclosure Schedules. If, within fifteen (15) days after his receipt of the Allocation Schedule, the Sellers’ Representative notifies the Buyer in writing that the Sellers object to one or more items reflected in the Allocation Schedule (indicating each disputed item and the Treasury Regulations promulgated thereunder (the “Allocation”basis for their objection thereto). The Shareholders and Buyer will not take any position inconsistent with the Election, the Allocation, or Sellers’ Representative and the amount of the adjusted grossed-up basis Buyer shall negotiate in any tax return or otherwisegood faith to resolve such dispute; provided, however, that Shareholders that, if the Sellers’ Representative and the Buyer are unable to resolve any dispute with respect to the Allocation Schedule within thirty (30) days following the Buyer’s receipt of the Sellers’ Representative’s objection notice, such dispute shall be entitled resolved by a nationally recognized accounting firm jointly selected by the Buyer the Sellers’ Representative within five (5) Business Days after the expiration of such 30-day period (or if the parties are unable to take into account agree upon a nationally recognized accounting firm, each party shall select a nationally recognized accounting firm and the two firms together shall select a third a nationally recognized accounting firm) (the “Accounting Referee”). The Accounting Referee shall make a determination as soon as practicable within 30 days (or such other time as the Buyer and the Sellers’ Representative shall agree in writing) after their Transaction Costs when calculating engagement, and their resolution of the disputed items shall be conclusive and binding upon the parties hereto. The fees and expenses of such gain or lossAccounting Referee shall be allocated between the Sellers and the Buyer based on their relative success with respect to the disputed items (as finally determined by the Accounting Referee). Buyer shall allocate For example, if the adjusted grossed-up basis among Sellers’ Representative challenges the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the calculation of an amount of $100,000, but the adjusted grossed-up basis in any tax return or otherwise; providedAccounting Referee determines that the Sellers’ Representative has a valid claim for only $40,000, however, that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assets. bear forty percent (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(1040%) of the Code.fees and expenses of the Accounting Referee and the Sellers shall bear the other sixty percent (60%) of such fees and expenses. If the Sellers’ Representative fails to deliver a dispute notice within the aforementioned 15-day period, then the Buyer’s Allocation Schedule shall be final and binding on the parties hereto. The Buyer shall prepare and file Forms 8023 and 8883 and such other documents required in connection with the Section 338(h)(10)

Section 338(h)(10) Election. (a) Buyer and Shareholders agreeSeller shall join in making an election under Code §338(h)(10) (and any corresponding elections under state, local, or foreign tax law) (collectively a “Section 338(h)(10) Election”) with respect to the acquisition purchase and sale of the Shares Company hereunder. Buyer shall prepare an allocation of the applicable portion of the Purchase Price (and all other capitalized costs), to be jointly updated by Buyer and Seller for any adjustments to the Purchase Price pursuant to this AgreementSections 1.2 and 1.3, to prepare and file among the election provided by assets of the Company in accordance with Section 338(h)(10) of the Code and Treasury Regulations thereunder (and any comparable election under similar provision of state, countylocal or non-U.S. law, or local law (collectively and separately the “Election”as appropriate). Each party Buyer shall provide deliver its proposed allocation to Seller in writing within thirty (30) days following the final determination of the Closing Date Purchase Price pursuant to Section 1.2 (but in no event later than four (4) months following the Closing Date) and, to the other all information necessary to permit extent that the making Seller does not agree with such proposed allocations, it shall so notify Buyer in writing within thirty (30) days of receipt of the Electionproposed allocations. Buyer Seller and Shareholders shall, no later than 30 days prior to the last date for filing a timely Election, execute and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Election. (b) In connection with the Election and no later than 30 days prior to the last date for filing a timely Election, Buyer shall in good faith (i) determine the amount of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10), and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance cooperate with the Code and the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders and Buyer will not take other to resolve any position inconsistent issues with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwiseBuyer’s proposed allocations; provided, however, that Shareholders if Seller and Buyer are unable to agree on the proposed allocations within twenty (20) days after the Seller’s delivery of its notice of disagreement with such proposed allocations, then resolution of any such disagreement shall be entitled determined by a nationally recognized accounting firm agreeable to take into account both Seller and Buyer and the determination by such accounting firm shall be binding on Buyer and Seller. If the parties elect to make a Section 338(h)(10) Election, Buyer, Seller the Company and their Transaction Costs when calculating such gain or loss. Buyer Related Persons and Affiliates shall allocate the adjusted grossed-up basis among the Company’s assets report, act and file Tax Returns (including, but not limited to IRS Form 8023 and 8883) in a manner all respects and for all purposes consistent with the Allocation allocation finally determined pursuant to this Section 6.8. If the parties elect to make a Section 338(h)(10) Election, none of Buyer, Seller, the Company nor their Related Persons and will not Affiliates shall take any position (whether in audits, Tax Returns, or otherwise) which is inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled such final allocation unless required to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assetsdo so by law. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of the Code.

Section 338(h)(10) Election. (a) PMC and Buyer shall make a timely, effective, and Shareholders agree, with respect to the acquisition of the Shares pursuant to this Agreement, to prepare and file the irrevocable election provided by under Section 338(h)(10) of the Code and under any comparable election under state, county, or local law statutes in any other jurisdiction with respect to the Company (collectively and separately the “Section 338(h)(10) Election”), and shall file such election in accordance with applicable regulations. Each party PMC, Shareholder, and Buyer shall provide cooperate (and cause their respective affiliates to cooperate) in all respects for the other all information necessary to permit the making purpose of the Election. Buyer and Shareholders shall, no later than 30 days prior to the last date for filing effectuating a timely and effective Section 338(h)(10) Election, execute including the execution and file Internal Revenue Service filing of any Tax Returns. Without limiting the foregoing, PMC, Shareholder, and Buyer agree that Form 8023 will be duly executed at the Closing and all other forms, returns, elections, schedules, and documents as may shall be required to effect and preserve a timely Electionfiled by Buyer. (b) In connection with Within 150 days after the Election and no later than 30 days prior to the last date for filing a timely ElectionClosing Date, Buyer shall in good faith (i) determine the amount deliver to Shareholder an allocation of the “adjusted grossedAggregate Deemed Sales Price (as such term is defined in Treasury Regulations Section 1.338-up basis” 4) among the assets of the Company’s assets (within the meaning of Company in accordance with Treasury Regulations adopted Sections 1.338-6 and -7 (the “Allocation Statement”). The Allocation Statement shall be sufficiently detailed to satisfy GAAP financial reporting requirements and tax reporting requirements under applicable Treasury Regulations. Shareholder shall have the right to review the Allocation Statement. If Shareholder disagrees with a material item in the Allocation Statement, it shall provide Buyer with a Notice of Disagreement within 30 days after the receipt of the Allocation Statement and shall specify thereon the reasons for its disagreement. The parties shall seek to resolve any differences as provided in Section 338(h)(102.4(d), and, if at the end of the 30-day resolution period provided therein they have not reached an agreement on all such matters, they shall promptly submit the dispute to the Arbitrator, who shall resolve the dispute as provided in Section 2.4(d). The costs, fees and (ii) allocate expenses of the Arbitrator with respect to disputes related to the Allocation Statement shall be borne equally by Shareholder and Buyer. Upon resolution of the disputed items, the allocation reflected on the Allocation Statement shall be adjusted grossed-up basis among to reflect such resolution. The Allocation Statement, either unadjusted if there are no disputes or as adjusted to reflect the Company’s assets resolution of all disputes, shall be the “Price Allocation” which shall be binding on the parties. PMC, Shareholder, and Buyer, and each of their affiliates, agree to act in accordance with the Code Price Allocation in the preparation and the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders filing of any Tax Return, including Form 8883, and Buyer will shall not voluntarily take any position action inconsistent with the Electiontherewith upon examination of any Tax Return, the Allocationin any refund claim, in any litigation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled otherwise with respect to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assetsTax Returns. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of the Code.

Section 338(h)(10) Election. (a) At Buyer’s option, Shareholder shall join Buyer and Shareholders agree, with respect to the acquisition of the Shares pursuant to this Agreement, to prepare and file the in making an election provided by under Section 338(h)(10) of the Code and any comparable election under state, county, or local law (collectively and separately the “Election”). Each party shall provide to the other all information necessary to permit the making ) and any corresponding articles under state, local or foreign tax Laws (including an election under Section 338(g) of the Election. Buyer and Shareholders shall, no later than 30 days prior to the last date for filing a timely Election, execute and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Election. (b) In connection with the Election and no later than 30 days prior to the last date for filing a timely Election, Buyer shall Code in good faith (i) determine the amount of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of Treasury Regulations adopted those jurisdictions where an election under Section 338(h)(10) is not permitted), and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance with the Code and the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate notify Shareholder in writing on or prior to thirty (30) days following the adjusted grossed-up basis Closing Date if Buyer decides to make such an Election and the Purchase Price shall be allocated among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the amount liabilities of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled Company and its Subsidiary pursuant to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assets. subparagraph (c) Upon making below. If such Election is made, Shareholder shall include any income, gain, loss, deduction, or other Tax item resulting from the Election, Shareholders Election on their Tax Returns to the extent required by applicable law. Shareholder shall also pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability any Tax imposed on the Company attributable to the making of the Election and the related deemed sale of assets, including (i) any Tax imposed under section 1374 of the Code, (ii) any Tax imposed under U.S. Treasury Regulations Section 1.338(h)(10)-1(d) or attributable (iii) any Tax imposed on the Company’s gain, and Shareholder shall indemnify Buyer against any Losses arising out of any failure to an pay any such Taxes; provided, however, that Buyer shall pay, as additional Purchase Price (payable in cash at least thirty (30) days before additional taxes are due and payable by Shareholder), such amount as is required to cause Shareholder to receive the same after Tax proceeds as if such election would not have been made, including any additional Taxes payable by Shareholder by virtue of the receipt of such additional Purchase Price but excluding any built-in gains Tax; provided that in no event shall any amount required to be paid by Buyer to Shareholder pursuant to this Section 6.3(a) exceed $325,000.00 (the “Make-Whole Amount”). (b) Buyer shall calculate the Make-Whole Amount and promptly deliver the calculation (accompanied by reasonable detail as to how it was computed) to Shareholder. For purposes of calculating the Make Whole Amount under statethis Section 6.3, local, or foreign law similar the total amount of gain realized by the Company pursuant to the election available under a deemed asset purchase pursuant to Section 338(h)(10) of the CodeCode shall be the same as the total amount of gain realized by Shareholder pursuant to a stock purchase. Buyer shall provide Shareholder with reasonable access during normal business hours to and the right to copy any documentation reasonably requested by Shareholder in connection with Buyer’s determination of the Make-Whole Amount. Shareholder may object to the calculation of the Make-Whole Amount by notifying Buyer in writing of such objection, and the basis therefore within thirty (30) days of Shareholder’s receipt of Buyer’s calculation of the Make-Whole Amount. Shareholder and Buyer shall use reasonable efforts to resolve any dispute over the calculation of the Make-Whole Amount; provided, however, if the Parties are unable to agree on the calculation of the Make-Whole Amount within thirty (30) days following Shareholder’s notice to Buyer that they disagree with Buyer’s calculation of the Make-Whole Amount, the issue shall be referred to Independent Accountant to resolve such dispute using the procedures set forth in Section 2.3(e)(iv) and the decision of Independent Accountant shall be conclusive and binding on the Parties. The expenses pertaining to any dispute resolution regarding the Make-Whole Amount shall be shared by the Parties in accordance with the applicable terms provided for in Section 2.3. (c) If an Election is made, Buyer, the Company, and Shareholder agree that the AGUB of the Company (plus other relevant items) initially will be allocated to the assets of the Company for all purposes (including Tax and financial accounting) as shown on the allocation schedule derived from the calculation of the Make Whole Amount. Buyer may amend Section 6.3 of the Disclosure Schedules from time to time (i) to account for (A) adjustments, if any, to the Purchase Price or (B) distributions, if any, of Escrow Funds to Shareholder, or (ii) to reflect differences, if any, between the asset allocation for Tax purposes and the asset allocation for financial accounting purposes; provided that the allocation schedule derived from the Make Whole Amount shall not be amended in any manner that adversely effects Shareholder. Buyer, the Company, and Shareholder shall file all Tax Returns (including amended returns and claims for refund) and information reports in a manner consistent with the determination relied upon for purposes of calculating the Make Whole Amount. (d) If an Election is made, Buyer shall prepare all federal tax forms, including U.S. federal tax Forms 8023 and 8883, and comparable state and local tax forms that may be required to effect a valid Election for federal and comparable state and local tax purposes (“338(h)

Section 338(h)(10) Election. (a) Buyer and Shareholders agreeSubject to compliance by the Purchaser with the Tax Timetable, with respect to the acquisition of the Shares pursuant hereunder, the Purchaser reserves the right to this Agreement, make an election under Section 338(h)(10) of the Code at any time on or prior to prepare and file the due date for making any such election as provided for by Section 338(h)(10) of the Code and any comparable the Regulations thereunder; provided, however, that the Sellers shall have no obligation to cooperate with the Purchaser with respect to such an election if (1) the Purchaser has not complied in all material respects with the requirements of the Tax Timetable required to be performed by the Purchaser or (2) the Sellers have not received the Tax Indemnification Payment by April 11, 2008. If the Purchaser makes such election and the Purchaser makes the Tax Indemnification Payment (as defined below) to each of the Sellers, the Sellers and the Purchaser shall jointly make an election under state, county, Section 338(h)(10) of the Code (and any corresponding elections under state or local law tax law) (collectively and separately the collectively, a “Section 338(h)(10) Election”). Each party The term “Tax Indemnification Payment” shall provide mean, for each Seller, the amount that the Purchaser shall be required to pay to such Seller equal to the other all information necessary aggregate amount reasonably required to permit reimburse such Seller on a net, after-tax basis for any cost, loss, liability or expense (including any increase in liability for Taxes, penalties, and interest and any reasonable legal and accounting fees) reasonably incurred in connection with: (1) the making aforesaid Section 338(h)(10) Election, and (2) the receipt not later than April 11, 2008 by such Seller from the Purchaser of the ElectionTax Indemnification Payment. Buyer and Shareholders shallIf the Purchaser makes a Tax Indemnification Payment to a Seller (or, no later than 30 days as provided by the following paragraph), to the Tax Escrow Agent on or prior to April 11, 2008, such Seller will take, and will cooperate with the last date for Purchaser and with each other Seller to take, all actions necessary and appropriate (including filing a timely Election, execute and file Internal Revenue Service Form 8023 and all other such forms, returns, elections, schedules, schedules and other documents as may be required required) to effect and preserve a timely Election. (b) In connection with the Election and no later than 30 days prior to the last date for filing a timely Election, Buyer shall in good faith (i) determine the amount of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10), and (ii) allocate the adjusted grossed-up basis among the Company’s assets Election in accordance with the Code and the Treasury Regulations promulgated thereunder (regulations thereunder, or any successor provisions. If the “Allocation”). The Shareholders Purchaser has elected to make the Section 338(h)(10) Election, and Buyer will not take any position inconsistent makes the Tax Indemnification Payment to each of the Sellers, the Sellers and the Purchaser shall, for Tax purposes, report the sale of the Shares pursuant to this Agreement in a manner which is consistent with the Section 338(h)(10) Election and shall take no position contrary thereto or inconsistent therewith in any Tax return or in any discussion with or proceeding before any taxing authority, or otherwise. Promptly after deciding to make a Section 338(h)(10) Election, the AllocationPurchaser shall notify the Sellers in writing of such decision so that each Seller has sufficient time to calculate the Tax Indemnification Payment to be made by the Purchaser to such Seller but in no event later than the date specified in the Tax Timetable. As soon as practicable following the receipt by such Seller of the irrevocable written notice from the Purchaser of its decision to make the 338(h)(10) Election, or but in any event not later than the date specified in the Tax Timetable for the same, each Seller shall deliver a written statement containing the amount of the adjusted grossed-up basis Tax Indemnification Payment which is claimed to be due to such Seller and the manner in any tax return or otherwise; providedwhich the amount of such Tax Indemnification Payment has been calculated to the Purchaser. If the Purchaser disagrees with a Seller’s calculation of the Tax Indemnification Payment, however, that Shareholders then the Purchaser shall be entitled pay (1) to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or Seller the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Tax Indemnification Payment as calculated by the Buyer shall be entitled to add its Transaction Costs Purchaser for such Seller (the “Purchaser’s Amount”) and (2) to the adjusted grossed-up basis for purposes Tax Escrow Agent an amount equal to (i) the amount of allocating the Tax Indemnification Payment which the Purchaser disagrees with (and as calculated by such adjusted grossed-up basis among Seller) less (ii) the CompanyPurchaser’s assets. (c) Upon making the Election, Shareholders Amount. The Tax Escrow Agent shall pay agree to Buyer and shall hold the Buyer harmless fromPurchaser’s Amount for the Purchaser and such Seller until the Purchaser and such Seller resolve their differences with respect to the amount of the disputed Tax Indemnification Payment in accordance with the procedures described in Section 2.3.4 (with respect to the calculation of the Closing Net Working Capital). Upon payment by the Purchaser to the Tax Escrow Agent of the amount of the disputed Tax Indemnification Payment, the amount, if any, of tax liability imposed on Seller that has computed the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of the Code.Tax Indemnification Payment which is in

Section 338(h)(10) Election. (a) Buyer and Shareholders agree, with respect to the acquisition of the Shares pursuant to this Agreement, to prepare and file the election provided by Section 338(h)(10) of the Code and any comparable election under state, county, or local law (collectively and separately the “Election”). Each party shall provide to the other all information necessary to permit the making of the Election. Buyer and Shareholders shall, no later than 30 thirty (30) days prior to the last date for filing a timely Election, execute and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Election. (b) In connection with the Election and no later than 30 thirty (30) days prior to the last date for filing a timely Election, Buyer shall in good faith (i) determine the amount of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10)) and pursuant to Section 6.6, and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance with the Code and allocation of the Treasury Regulations promulgated thereunder Purchase Price provided for in Section 6.6 (the “Allocation”). The Shareholders and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs Expenses when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs Expenses to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assets. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of the Code.

Section 338(h)(10) Election. (aIf Buyer elects by delivery of written notice to the Seller on or before the date that is 150 days prior to the last date on which an election pursuant to Section 338(h)(10) Buyer and Shareholders agree, can be made with respect to the acquisition purchase of the Shares pursuant to Stock contemplated by this Agreement, Seller will, subject to prepare this Section 13.5, join with Buyer in making a Section 338(h)(10) election with respect to the purchase and file sale of the Stock. Buyer and Seller shall cooperate fully in the making of such Section 338(h)(10) election. In particular, and not by way of limitation, in order to effect such Section 338(h)(10) election, Buyer and Seller shall jointly execute, on or prior to the Closing Date, IRS Form 8023 and all attachments required to be filed therewith pursuant to the applicable United States Treasury regulations section. Such Form 8023 and attachments shall be held by Buyer and shall, subject to payment to the Seller in accordance with the last sentence of this Section 13.5, be filed by Buyer on behalf of itself and Seller in accordance with, and within the time prescribed by, Section 338 of the Code and the regulations thereunder. Buyer and Seller agree to report the transaction for Tax purposes in a manner consistent with the making of such Section 338(h)(10) election. In the event that Buyer proposes to cause an election provided by pursuant to Section 338(h)(10) of the Code and any comparable election under stateto be made in accordance with this Section 13.5, county, or local law (collectively and separately the “Election”). Each party shall provide to the other all information necessary to permit the making of the Election. Buyer and Shareholders shall, no later than 30 at least 150 days prior to the last date for filing on which such election can be made, prepare and deliver to Seller a schedule (the “Allocation Schedule”) pursuant to which the “aggregate deemed sales price” (within the meaning of Treasury Regulation Section 1.338-4) is allocated among the assets of Seller in accordance with Treasury Regulation Section 1.338-6 and 1.338-7. If Seller objects to any portion of the Allocation Schedule, it shall notify Buyer in writing within forty-five (45) days of the original receipt of the Allocation Schedule by Seller, failing which the Allocation Schedule shall become final. If Seller timely Electionnotifies Buyer of its objection to any portion or portions of the Allocation Schedule originally delivered to Seller, execute the dispute resolution procedures set forth in Section 3.2(d) shall apply (and, in connection therewith, the Neutral Accountant shall be instructed to complete its analysis and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Election. render its decision not less than sixty (b60) In connection with the Election and no later than 30 days prior to the last date for filing a timely Election, Buyer shall in good faith (i) determine on which the amount of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10), and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance with the Code and the Treasury Regulations promulgated thereunder (the “Allocation”election can be made). The Shareholders parties agree to file all state and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets federal income Tax Returns in a manner consistent with the Allocation and will not take Schedule as finalized to reflect the resolution of any position inconsistent with timely filed objections by the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs Seller. As a condition to the adjusted grossed-up basis for purposes filing of allocating such adjusted grossed-up basis among the Company’s assets. (cany Section 338(h)(10) Upon making the Electionelection, Shareholders Buyer shall pay to Buyer and shall hold the Buyer harmless fromSeller, the amount, if any, of tax liability imposed on the Company attributable in immediately available funds at or prior to the making of filing the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) election, as additional Consideration, an amount such that the net after-Tax amount realized by Seller, after taking into account the amount received by Seller under this sentence, is equal to the amount Seller would have realized in the absence of a Section 338(h)(10) election (the “Tax Adjustment Amount”); and Seller shall provide to Buyer, within forty-five (45) days after receipt of the Codeproposed Allocation Schedule, a reasonably detailed calculation of the Tax Adjustment Amount required to be paid by Buyer hereunder (the “Tax Adjustment Calculation”) (which, if disputed, shall immediately be submitted for resolution in a manner consistent with the procedures set forth in Section 3.2(d) above and this Section 13.5). The agreed Tax Adjustment Calculation shall be final and binding on the parties with regard to the Tax Adjustment Amount required to be paid by Buyer to Seller. Anything elsewhere contained in this Section 13.5 to the contrary notwithstanding, Buyer may withdraw its proposal to file a Section 338(h)(10) election at any time prior to the filing thereof.

Section 338(h)(10) Election. (a) Buyer Purchaser and Shareholders agree, with respect to Seller shall make timely and effective joint elections (the acquisition of the Shares pursuant to this Agreement, to prepare and file the election provided by “Section 338(h)(10) Elections”) under Section 338(h)(10) of the Code and any comparable election under state, county, or local law (collectively and separately the “Election”). Each party shall provide with regard to the other all information necessary to permit the making purchase of the ElectionShares. Buyer At Closing, Purchaser and Shareholders shall, no later than 30 days prior to Seller shall execute a properly completed IRS Form 8023 (Elections Under Section 338 for Corporations Making Qualified Stock Purchases) making the last date for filing Section 338(h)(10) Election and Purchaser shall file such IRS Form 8023 with the IRS on a timely Election, execute and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Electionbasis following the Closing Date. (b) In connection Purchaser and Seller agree to allocate the Adjusted Purchase Price (together with any assumed liabilities and other items required to be taken into account by the Election and no later than 30 days prior to Code) among the last date for filing a timely Election, Buyer shall in good faith (i) determine the amount assets of the “adjusted grossed-up basis” Company as set forth on Section 8.9 of the Company’s assets Disclosure Schedule (within the meaning “Asset Allocation”). The Asset Allocation shall be reflected on the appropriate Section 338 Forms (as defined below). The Asset Allocation shall be used for purposes of Treasury Regulations adopted under Section 338(h)(10), determining the aggregate deemed sales price and (ii) allocate the adjusted grossed-up basis among under the Company’s applicable Treasury Regulations and in reporting the deemed sale of assets of the Company in accordance connection with the Code Section 338(h)(10) Elections. Purchaser, Seller and their respective Affiliates hereby agree that they will report the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders federal, state, foreign and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount other tax consequences of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets transactions contemplated by this Agreement in a manner consistent with the Allocation Section 338(h)(10) Elections and will not take any position inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assetsAsset Allocation. (c) Upon making Purchaser shall be responsible for the Election, Shareholders shall pay to Buyer preparation of all forms and shall hold documents required in connection with the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of Elections. Purchaser, Seller and their respective Affiliates shall timely file all forms required to be filed to make the Code.Section 338(h)(10) Elections and shall provide each other with evidence that such filings have been made. Seller and/or its Affiliates shall execute and deliver to Purchaser such documents or forms consistent with the Asset Allocation (including Section 338 Forms, as defined below) as Purchaser shall request or as are required by applicable Law for an effective Section 338(h)(10)

Section 338(h)(10) Election. (ai) Buyer and Shareholders agreeUpon the request of Parent, the Stockholders shall join with Parent in an election with respect to the acquisition purchase and sale of the Shares pursuant to this Agreement, to prepare and file the election provided by Common Stock under Section 338(h)(10) of the Code and any comparable election under state, county, or similar provisions of state and local law Laws (all such elections being referred to collectively and separately as the “ElectionSection 338(h)(10) Elections”). Each party If Parent so requests, the Stockholders’ Representative shall provide deliver to Parent, at or prior to the other all Closing, a properly executed IRS Form 8023 containing information necessary then available, which Parent shall file or cause to permit be filed with the making of the Election. Buyer and Shareholders shall, no Internal Revenue Service not later than 30 thirty (30) days prior to the last date for filing a timely Electionsuch Section 338(h)(10) Elections are required to be filed. Parent and the Stockholders’ Representative shall, execute and file Internal Revenue Service Form 8023 and as promptly as practicable following the Closing Date, cooperate with each other to take all other actions necessary and appropriate (including filing such forms, returns, elections, schedules, schedules and other documents as may be required required) otherwise to effect effect, perfect and timely preserve a timely Electionthe Section 338(h)(10) Elections. (bii) In connection with the Election If Section 338(h)(10) Elections are made Parent shall prepare and no later than 30 days prior deliver to the last date for filing Stockholders’ Representative (A) a timely Electionschedule allocating the “aggregate deemed sales price,” as defined in Treasury Regulation Section 1.338-4, Buyer shall in good faith (i) determine among the amount assets of the “adjusted grossed-up basis” Company and (B) a complete set of IRS Forms 8883 (and any comparable forms required to be filed under Applicable Law) and any additional data or materials required to be attached thereto pursuant to the Treasury Regulations promulgated under Section 338 of the Company’s assets Code (within the meaning of Treasury Regulations adopted under Section 338(h)(10“Allocation Schedules”), . The Allocation Schedules shall be reasonably satisfactory to the Stockholders’ Representative and (ii) allocate the adjusted grossed-up basis among the Company’s assets shall be prepared in accordance with Section 338(h)(10) of the Code and the Treasury Regulations promulgated thereunder thereunder. Allocations to various asset groups shall be made based on appraisals with the allocation to inventory and accounts receivable being no more than an amount equal to the tax basis of each such asset. (iii) The Stockholders’ Representative shall have thirty (30) days following receipt by it of the “Allocation”)Allocation Schedules during which to dispute any item contained in the Allocation Schedules. If the Stockholders’ Representative fails to notify Parent of any such dispute within such 30-day period, the Allocation Schedules shall be deemed to have been accepted by the Stockholders’ Representative. If the Stockholders’ Representative timely notifies Parent of any such dispute, and the Stockholders’ Representative and Parent cannot resolve any such dispute within twenty (20) days of receipt by Parent of such notice, such dispute shall be resolved by the Accountants; the determination of the Accountants with respect to such dispute shall be made as promptly as practicable and shall be final and binding on the Stockholders’ Representative and Parent, and may be entered and enforced in any court having jurisdiction. The Shareholders fees and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount expenses of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders Accountants shall be entitled borne equally by Parent and the Stockholders’ Representative. (iv) If Section 338(h)(10) Elections are made, Parent and the Stockholders’ Representative shall report the Merger pursuant to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner this Agreement consistent with the Section 338(h)(10) Elections and the Allocation Schedules, and will not shall take no position to the contrary thereto in any Return, or in any proceeding before any Tax Authority or otherwise. Neither Parent nor the Stockholders shall take any position inconsistent with the Election, the Allocation or the amount action to modify any of the adjusted grossed-up basis in forms or reports (including any tax return corrections, amendments or otherwise; provided, however, supplements thereto) that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis are required for purposes of allocating such adjusted grossed-up basis among the Company’s assets. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) Elections after their execution or to modify or revoke any of the CodeSection 338(h)(10) Elections following the filing of the Form 8023 without the written consent of the other party, which consent shall not be unreasonably delayed or withheld.

Section 338(h)(10) Election. (a) Seller and Buyer and Shareholders agree, with respect to the acquisition of the Shares pursuant to this Agreement, to prepare and file the shall join in making an election provided by under Section 338(h)(10) of the Code with respect to the Connecticut Companies and any comparable election corresponding elections under state, county, state or local law (collectively and separately the each, a “Section 338(h)(10) Election”). Each party shall As reasonably requested from time to time (whether before, at or after the Closing), each of Seller and Buyer will assist and provide the necessary information to the other all information necessary to permit in connection with the making preparation of the Election. Buyer and Shareholders shall, no later than 30 days prior to the last date for filing a timely Election, execute and file Internal Revenue Service Form 8023 and all other forms, returns, elections, schedules, and documents as may be any form or document required to effect a valid and preserve timely Section 338(h)(10) Election, including IRS Form 8883, any similar form under state or local law and any schedules or attachments thereto (collectively, “Section 338 Forms”). Upon delivery to Seller of any Section 338 Form that has been prepared in accordance with this Section 13.10, Seller will duly and promptly execute such form and deliver it to Buyer. If Buyer determines that any change is to be made in a timely Election. Section 338 Form previously executed and delivered to Seller, then Buyer may prepare a new Section 338 Form in accordance with this Section 13.10 and deliver such new Section 338 Form to Seller, and Seller will duly and promptly execute such form and deliver it to Buyer. After the Closing Date but not more than ninety (b90) In connection with days following the Election and no later than 30 days prior to the last date for filing a timely ElectionClosing Date, Buyer shall prepare and deliver to Seller an allocation schedule (the “Allocation Schedule”) setting forth the allocation of the Purchase Price and the liabilities of the Acquired Companies, plus other relevant items, to the assets of the Acquired Companies for Income Tax purposes in a manner consistent with the fair market values. Within thirty (30) days after Seller’s receipt of the Allocation Schedule, Seller will deliver to Buyer a written notice (in reasonable detail) indicating whether Seller disagrees with the Allocation Schedule. If Seller fails to object in writing to the Allocation Schedule within such 30-day period, Seller shall be deemed conclusively to agree to the Allocation Schedule and the Allocation Schedule will be final and binding upon the parties. If Seller delivers to Buyer a notice of disagreement, Buyer and Seller will work together in good faith (i) determine to resolve such disagreement. If Buyer and Seller have been unable to resolve such disagreement, Buyer and Seller shall submit such disagreement to the amount of the “adjusted grossed-up basis” of the Company’s assets (within the meaning of Treasury Regulations adopted under Section 338(h)(10), and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance with the Code Expert and the Treasury Regulations promulgated thereunder Expert shall render its determination with thirty (30) days after the “Allocation”)submission. The Shareholders Allocation Schedule will be subsequently amended as required by applicable law as the parties may mutually agree. Each of Buyer, Seller and Buyer their Affiliates will not take any position inconsistent with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets file all Tax Returns in a manner consistent with the Allocation and will not take any position inconsistent Schedule (as amended pursuant to this Section 13.10). Except for a Section 338(h)(10) Election with respect to the ElectionConnecticut Companies, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall not be entitled permitted to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assets. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to make an election under state, local, or foreign law similar Section 338 of the Code with respect to any Acquired Company that is a domestic corporation within the election available under meaning of Section 338(h)(107701(a)(4) of the Code.

Section 338(h)(10) Election. (a) Notwithstanding anything to the contrary contained in this Agreement, the Estimated Section 338 Adjustment and the Final Section 338 Adjustment shall be determined in accordance with the principles of Exhibit 4 of Annex A and the Sellers’ Model; provided that if Buyer or either Seller notifies the other Parties prior to the final determination of the Final Section 338 Adjustment that such Party has reasonably determined that the Sellers’ Model produces an Estimated Section 338 Adjustment or Final Section 338 Adjustment that is manifestly inconsistent with the principles of Exhibit 4 of Annex A, Buyer and Shareholders agreeSellers shall negotiate in good faith to resolve any dispute regarding such inconsistency. If Buyer and Sellers are unable to agree whether any change to the Sellers’ Model is needed, such dispute will be resolved in a manner consistent with procedures in Section 8.7(b) and in a manner consistent with the principles of Exhibit 4 of Annex A. All references in this Agreement to the Sellers’ Model shall refer to the Sellers’ Model as finally determined pursuant to this Section 8.7(a). (b) Sellers and Buyer shall join in making an election under Code Section 338(h)(10) (and any corresponding election under state, local or foreign law) (a “338 Election”) with respect to the acquisition Buyer’s purchase of the Shares and deemed purchase of the other Transferred Companies pursuant to this Agreement, to . Sellers shall prepare and file deliver to Buyer, by the election provided by due date for Buyer’s delivery of the Final Adjustment Statement, for Buyer’s review and consent a schedule (the “Section 338 Allocation”) allocating (i) the Purchase Price and other amounts properly treated as consideration for Tax purposes among the XXXX Shares and the AAC Shares for federal, state, local and foreign tax purposes and (ii) deemed sales price of the assets of the Transferred Companies (and any eligible Subsidiary for which a 338 Election is made) resulting from the 338 Elections (as required pursuant to Section 338(h)(10) of the Code and any comparable election the Treasury Regulations) among such assets. The Section 338 Allocation shall, with respect to the allocation of the deemed sales price, be made in a manner consistent with the principles of Exhibit 4 of Annex A, the Sellers’ Model, and the Purchase Price allocation under state, county, or local law clause (collectively and separately the “Election”i) of this Section 8.7(b). Each party Buyer and Sellers shall negotiate in good faith to resolve any disputed items. If Buyer and Sellers are unable to agree on the Section 338 Allocation within fifty-five (55) days after Sellers provide the Section 338 Allocation, the parties shall request the Independent Accounting Firm to decide any disputed items within thirty (30) Business Days; provided that the Independent Accounting Firm shall resolve any dispute in a manner consistent with the procedures in Sections 2.5(c)(iv) and 2.5(c)(v) (as reasonably modified for purposes of this Section 8.7), the Sellers’ Model, and the principles of Exhibit 4 of Annex A. The parties shall revise the Section 338 Allocation to take into account any adjustment to the Purchase Price (or any other items that are treated as consideration paid by Buyer for applicable Tax purposes) pursuant to Section 2.5. The costs of the Independent Accounting Firm shall be borne equally by Sellers (50%) and Buyer (50%). The Section 338 Allocation shall be used in preparing IRS Form 8883, and any similar forms under applicable Tax law. Sellers and Buyer shall (and shall cause their Affiliates to) report and file all information necessary Tax Returns (including amended Tax Returns and claims for refund) consistent with the Section 338 Allocation and, except in each case as required by applicable Tax law, shall (and shall cause their Affiliates to) take no position contrary thereto or inconsistent therewith (including, without limitation, in any audits or examinations by any Taxing authority or any other proceeding). Buyer and Sellers agree to permit cooperate in good faith with each other in the preparation and timely filing of any Tax Returns required to be filed in connection with the making of such an election, including the Electionexchange of information and the joint preparation and filing of IRS Form 8023 and related schedules. Buyer and Shareholders shallSellers agree to report the transactions under this Agreement consistently with such elections and shall take no position contrary thereto unless required to do so by applicable Tax law. (c) Sellers shall be responsible for the preparation and filing of all Section 338 Forms in accordance with applicable Tax laws and the terms of this Agreement (including the agreed-to Section 338 Allocation described in Section 8.7(b), no later than 30 the principles of Exhibit 4 of Annex A and the Sellers’ Model), and shall deliver such Section 338 Forms to Buyer at least thirty (30) days prior to the last date for filing a timely Election, such Section 338 Forms are required to be filed. Buyer shall execute and file Internal Revenue Service Form 8023 deliver to Sellers such documents or forms (including executed Section 338 Forms) as are requested and all other formsare required by any laws in order to properly complete the Section 338 Forms, returns, elections, schedules, and documents as may be required to effect and preserve a timely Election. at least twenty (b20) In connection with the Election and no later than 30 days prior to the last date for filing a timely Electionsuch Section 338 Forms are required to be filed; provided, however, that Buyer may provide Sellers with comments to any such documents or Section 338 Forms, and Sellers will revise such documents or Section 338 Forms to incorporate Buyer’s comments that are consistent with Applicable Law (with any disputes as to whether such comments are consistent with Applicable Law decided by the Independent Accounting Firm, whose costs shall be split evenly between Sellers and Buyer). Buyer shall provide Sellers with such information as Sellers reasonably requests in good faith order to prepare the Section 338 Forms by the later of thirty (i30) determine days after Sellers’ request for such information or thirty (30) days prior to the amount date on which Buyer is required to deliver such forms to Sellers. (d) Buyer and Sellers agree to treat the Pre-Sale Transactions as occurring prior to the purchase of the “adjusted grossed-up basis” Shares for U.S. federal income Tax purposes and all applicable state and local Tax purposes, including for purposes of the Company’s assets (within the meaning Section 338 of Treasury Regulations adopted under Section 338(h)(10), and (ii) allocate the adjusted grossed-up basis among the Company’s assets in accordance with the Code and the Treasury Regulations promulgated thereunder (the “Allocation”). The Shareholders and Buyer will not take any position inconsistent with the Election, the Allocation, or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that Shareholders shall be entitled to take into account their Transaction Costs when calculating such gain or loss. Buyer shall allocate the adjusted grossed-up basis among the Company’s assets in a manner consistent with the Allocation and will not take any position inconsistent with the Election, the Allocation or the amount of the adjusted grossed-up basis in any tax return or otherwise; provided, however, that the Buyer shall be entitled to add its Transaction Costs to the adjusted grossed-up basis for purposes of allocating such adjusted grossed-up basis among the Company’s assetsthereunder. (c) Upon making the Election, Shareholders shall pay to Buyer and shall hold the Buyer harmless from, the amount, if any, of tax liability imposed on the Company attributable to the making of the Election or attributable to an election under state, local, or foreign law similar to the election available under Section 338(h)(10) of the Code.